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2017 DIGILAW 7 (MEG)

Paul Leong v. Archdiocese of Shillong

2017-02-23

DINESH MAHESHWARI

body2017
JUDGMENT : Dinesh Maheshwari, J. Preliminary 2. This first appeal under Section 96 of the Code of Civil Procedure by the defendant-tenant is directed against the Judgment and Decree dated 14.11.2012 as passed in Title Suit No.9 (H) of 2003, whereby the learned Assistant District Judge, Shillong has decreed the suit filed by the plaintiff-respondent for eviction and recovery of arrears of rent, essentially after finding that the defendant-tenant had been a defaulter in payment of rent. 3. It may be noticed at the outset that three title suits between the same parties, bearing numbers 8(H) of 2003, 9(H) of 2003 and 10(H) of 2003 and relating to different tenancies in different portions of the same building, were decided together by the impugned common judgment dated 14.11.2012. Initially, the defendant-appellant attempted to assail the decrees passed in the three suits by way of this single appeal but on 10.03.2016, an objection was raised on behalf of the plaintiff-respondent on the maintainability of single appeal against the decrees so passed in three suits whereupon, learned counsel for the defendant-appellant submitted that he was not pressing on his challenge to the decrees passed in Title Suit No. 8 (H) of 2003 and Title Suit No. 10 (H) of 2003; and was confining this appeal only in relation to the decree passed in Title Suit No. 9 (H) of 2003. Having regard to the submissions made, this Court clarified the position by the order dated 10.03.2016 as under: "10.03.2016 Although learned counsel appearing for the respondent(plaintiff) has rightly raised the objection that a single appeal against the judgment passed in three different Title Suits Nos.8, 9 and 10(H) 2003 cannot be maintained because separate decrees were passed in separate suits but then, learned counsel for the appellant submits that so far title Suit Nos.8(H) of 2003 and 10(H) of 2003 are concerned, the appellant is not pressing on his challenge in the relation with the decree passed therein; and is limiting this appeal only in relation to Title Suit No.9(H)2003. In view of the submission so made on behalf of the appellant, to put the record straight, it is observed that this appeal shall be considered in relation to the judgment and decree dated 14.11.2012 as passed by the Assistant District Judge, Shillong only in relation to title suit No.9(H)2003. In view of the submission so made on behalf of the appellant, to put the record straight, it is observed that this appeal shall be considered in relation to the judgment and decree dated 14.11.2012 as passed by the Assistant District Judge, Shillong only in relation to title suit No.9(H)2003. As a necessary corollary, it follows that the decrees passed in title suit Nos.8(H) and 10(H)2003 have not been challenged by the appellant and they shall be considered having attained finality, of course, without prejudice to the right of the appellant of making submissions in the present appeal. For the observations foregoing, it follows that the plaintiff/respondent shall be free to seek execution of the decrees passed in Title Suit Nos.8(H) and 10(H) of 2003, in accordance with law. Learned counsel for the appellant prays for time for preparing the matter for final hearing. List the matter for final hearing on 30.03.2016, as prayed." The relevant background aspects 4. The plaintiff-respondent filed the suits aforesaid, seeking eviction of the defendant-appellant from the respective suit premises and recovery of arrears of rent with the averments that the parties had entered into three tenancy agreements dated 07.06.2002 in respect of different portions of the three-storied RCC building, known as "Salonsar Mansion" and situated at Jail Road, Shillong. The respondent averred in the plaint relating to T. S. No. 9(H) of 2003, inter alia, that as per the terms and conditions mutually agreed upon in the tenancy agreement dated 07.06.2002, an area admeasuring about 4,500 sq.ft. at the ground floor of the building aforesaid was let out to the defendant-appellant at the monthly rent of Rs. 40,500/-; that the rent was payable in the first week of every English calendar month; and that the tenancy was for a period of 5 years w.e.f. 08.06.2002, renewable for the period as mutually agreed upon and after enhancing the monthly rent by 5%. The plaintiff-respondent also averred that as per the mutually agreed terms and conditions, the defendant-appellant deposited a sum of Rs.1,00,000/- towards security. 5. The plaintiff-respondent alleged that the defendant-appellant failed to make payment of the monthly rent as per the terms and conditions of tenancy and despite repeated requests. It was alleged that the defendant-appellant had defaulted in payment of rent since the month of February, 2003 except that he made payment of rent for the month of July, 2003. 5. The plaintiff-respondent alleged that the defendant-appellant failed to make payment of the monthly rent as per the terms and conditions of tenancy and despite repeated requests. It was alleged that the defendant-appellant had defaulted in payment of rent since the month of February, 2003 except that he made payment of rent for the month of July, 2003. Further, it was asserted with reference to Clause 15 of the agreement dated 07.06.2002 that upon default in payment of rent consecutively for a period of two months, the plaintiff was entitled to terminate the tenancy by serving one month notice and accordingly, the notice was sent to the defendant on 16.10.2003, asking him to vacate the premises in question on or before 30.11.2003. It was alleged that despite service of notice and termination of tenancy, the defendant failed to vacate the premises in question. 6. The plaintiff-respondent further alleged that after receipt of the notice, the defendant sent a reply through the lawyer on 27.11.2003 making the false claims as if he had made payment of a sum of Rs.7,00,000/- to the plaintiff and that the ground floor was completed only in the month of October, 2003 and further that only an area admeasuring 3498 sq.ft. was in his occupancy at the ground floor. While denying all such claims, the plaintiff asserted that in fact, the total let out area came to 4540 sq.ft. with addition of the area for passage, latrine, parking and surrounding lighting but at the request of the defendant, the same was rounded off to 4500 sq.ft. and was mentioned accordingly in the agreement. The plaintiff also asserted its entitlement to receive the due rent for nine months @ Rs.40,500/per month. 7. The plaintiff-respondent filed the suit in the month of December, 2003 with the submissions aforesaid, and alleged that the defendant-appellant was liable for eviction for having defaulted in payment of rent for nine months from the month of February, 2003 to November, 2003 (except the rent paid for the month of July, 2003). The plaintiff also claimed the decree for a sum of Rs.3,64,500/,- being the rent due for the said nine months; and for damages @ Rs.2000/- per diem until eviction of the defendant. 8. The plaintiff also claimed the decree for a sum of Rs.3,64,500/,- being the rent due for the said nine months; and for damages @ Rs.2000/- per diem until eviction of the defendant. 8. While refuting the case of the plaintiff and after taking various objections as regards maintainability of the suit and want of cause of action, the defendant-appellant specifically asserted in the written statement that the actual area under his occupation at the ground floor of the said building was 3948 sq.ft.; and he was required to make payment of the rent @ Rs.10/- per sq.ft. only for this area under his occupation. The defendant-appellant also alleged that the copy of the tenancy agreement was never supplied to him but in any case, the said agreement was entirely meaningless and was of no effect. The defendant-appellant further asserted that the possession of ground floor was handed over to him only on 17.10.2003 and hence, the tenancy commenced only from this date of handing over the possession. The defendant-appellant further alleged that the plaintiff-respondent accepted an amount of Rs.19,740/- towards the rent for half a month, for the period between 17.10.2003 to 31.10.2003. The averments taken in paragraphs No.10 to 12 of the written statement, being relevant for the present purpose and which specify the core of the defence of the defendant-appellant, are reproduced for ready reference as under:- "10. That the statement made in Paragraph No. 2 of the Plaint is not correct, hence, denied. In reply the Answering Defendant submits that the actual area of the RCC Building in the Ground Floor under the occupation of the Defendant is 3948 sq.ft. as such the Defendant is required to pay rent @ Rs.10/- per sq.ft. for the correct area which is 3948 Sq.ft. It is further submitted that the copy of the Tenancy Agreement was never supplied to the Defendant by the Plaintiff and the same has not been corrected by the Plaintiff deliberately to cause wrongful loss to the Defendant. The Defendant came to know about the area of the Ground Floor after taking measurement of the area in the month of October 2003 when the Ground Floor was handed over to him after its completion on 17-10-2003. The Defendant came to know about the area of the Ground Floor after taking measurement of the area in the month of October 2003 when the Ground Floor was handed over to him after its completion on 17-10-2003. The Tenancy Agreement dated 07-06-2002 is meaningless and the Plaintiff cannot file the Ejectment suit against the Defendant placing reliance on the terms and conditions of the said Tenancy Agreement and just to take advantage of his own wrong. 11. That with regard to the statement made in Paragraph No. 3 of the Plaint, the Answering Defendant submits that the Tenancy commenced w.e.f. 17-10-2003 the date on which the possession of Ground Floor was handed over to the Defendant. The Plaintiff cannot dispute the facts when he himself accepted rent of Rs. 19,740/- (Rupees Nineteen Thousand Seven Hundred Forty Only) being month rent for the period w.e.f. 17-10-2003 to 31-10-2003. 12. That with regard to the statement made in Paragraph No. 4 of the Plaint, the Answering Defendant submits that he paid Rs. 1,00,000/- (Rupees One Lakh Only) as Security Deposit and thereafter paid Rs. 7,00,000/- (Rupees Seven Lakh Only) as Advance apart from this the Defendant has spent huge amount for the construction of show room, plaster paris, labour charges, painting, electric fittings, marble flooring for the area measuring 3948 sq.ft. sealing and polishing etc. The expenditure incurred by the Defendant was amounting to Rs. 25,00,000/- (Rupees Twenty Five Lakh Only). It is further submitted that the Defendant requested the Plaintiff to execute a fresh Tenancy Agreement since the Tenancy commenced w.e.f. 17-10-2003 from the date of handing over the possession to the Defendant and the Advance amount of Rs. 7,00,000/- (Rupees Seven Lakh Only) and the expenditure incurred amounting to Rs. 25,00,000/- (Rupees Twenty Five Lakh Only) by the Defendant were to be shown in the Tenancy Agreement." 9. While also refuting the plaintiff's claim of rent being payable in the first week of English calendar month, the defendant-appellant alleged that the plaintiff was in the habit of accepting the rent whenever the same was tendered and never raised any objection in this regard. While also refuting the plaintiff's claim of rent being payable in the first week of English calendar month, the defendant-appellant alleged that the plaintiff was in the habit of accepting the rent whenever the same was tendered and never raised any objection in this regard. The defendant-appellant also asserted that he used to pay the rent diligently without fail after the premises were handed over to him on 17.10.2003 for the area in his possession; and as per instructions, the rent was deposited into the bank account of the plaintiff in the Federal Bank Ltd., Shillong Branch, being SB Account No. 5926. The defendant asserted that the plaintiff accepted an amount of Rs. 19,740/- towards the rent for the period w.e.f. 17.10.2003 to 31.10.2003 and thereafter @ Rs.39,480/- per month until the month of January 2004 and hence, he was not a defaulter in payment of rent. 10. As noticed, besides the premises forming the subject-matter of Title Suit No.9 (H) of 2003, the defendant-appellant also took on rent two other portions on the first floor of the same building from the plaintiff for which, separate registered tenancy agreements were executed on 07.06.2002 and those were the subject-matter of T.S. No. 8 (H) of 2003 and T.S. No. 10 (H) of 2003, the decrees passed wherein have attained finality. However, as shall be noticed hereinafter later, a few aspects relating to the rent payable for the said two other portions carry some relevance to the questions involved in this appeal. Thus, it could be noticed for a comprehension of all the relevant facts that according to the plaintiff-respondent, an area of 2,500 sq. ft. on the first floor of the building in question was let out to the defendant-appellant at the monthly rent of Rs.22,500/-; and another portion of 1,500 sq.ft on the first floor was let out to him at the monthly rent of Rs.13,500/-. In both T.S. Nos.8 and 10 (H) of 2003, the defendant maintained that the premises in question were never handed over to him and hence, the question of eviction and recovery of rent did not arise at all. The defendant refuted the plaintiff's claims by stating that the plaintiff was relying on the terms and conditions embodied in the tenancy agreements which were inoperative, un-enforceable and redundant since the plaintiff had acted contrary to the terms and conditions thereof. The defendant refuted the plaintiff's claims by stating that the plaintiff was relying on the terms and conditions embodied in the tenancy agreements which were inoperative, un-enforceable and redundant since the plaintiff had acted contrary to the terms and conditions thereof. The defendant averred that even though the portions of the premises were not handed over to him but on the request of plaintiff, he paid the rent w.e.f. October 2002 till January 2003 and thereafter, in July 2003 on the assurance of plaintiff that the portions would be handed over to him soon after completion and that the rent paid in advance would be adjusted later on. However, according to the defendant, such assurances were never fulfilled by the plaintiff. 11. In Title Suit No.9 (H) of 2003, the learned Trial Court proceeded to frame the following issues for determination of the questions raised by the parties:- I. Whether there is any cause of action for the suit? II. Whether the suit is maintainable? III. Whether ad valorem Court fee paid? IV. Whether the area under occupation of the defendant at ground floor is 4500 sq.ft? V. Whether the parties are bound by the tenancy agreement dated 07.06.2002. If not, whether the tenancy commence from 08.06.2002 or 17.10.2003? VI. Whether the Defendant paid a sum of Rs.7,00,000/- as advance and requested the plaintiff to execute a fresh tenancy agreement? VII. Whether the Defendant spent Rs.25,00,000/- for construction of show room, plastic of paris, labour charges, painting of electrical fittings, marble flooring, ceiling and polishing for the area 3948 sq.ft ? VIII. Whether the Defendant is a defaulter in payment of monthly rent w.e.f. February 2003? IX. Whether the Defendant is liable for ejectment? X. To what relief/relief’s the parties are entitled to? 12. It is noticed that the aforesaid three title suits bearing numbers 8 (H) of 2003, 9 (H) of 2003 and 10 (H) of 2003 were tried together and common evidence was led by the parties in relation to these suits. After having heard the parties finally, the learned Assistant District Judge, Shillong proceeded to decide the three suits together by the impugned common order dated 14.11.2012. In relation to the suit related with the present appeal [T.S. No.9 (H) of 2003] the learned Trial Court found that issues No. IV to VIII called for determination before other issues. 13. After having heard the parties finally, the learned Assistant District Judge, Shillong proceeded to decide the three suits together by the impugned common order dated 14.11.2012. In relation to the suit related with the present appeal [T.S. No.9 (H) of 2003] the learned Trial Court found that issues No. IV to VIII called for determination before other issues. 13. With reference to the tenancy agreement Exhibit-I and the oral evidence of the parties, the learned Trial Court rejected the case of the defendant that only an area admeasuring 3948 sq.ft. was under his occupation at the ground floor and answered issue No. IV in favour of the plaintiff. Of course, while recording such findings, the learned Trial Court also made an observation that the defendant had made a baseless claim without any counter claim as regards his allegation of possessing only an area of 3948 sq.ft. The learned Trial Court, inter alia, observed and held as under:- "..... Even if Pw1 admitted the area of the RCC building in the ground floor is 3948 sq.ft. (but with) 15% of the passage, latrine and toilet which the area when included would be more than 3948 sq.ft. Though the Pw1 has deposed that it is a fact that the Defendant requested to accept rent only in respect of 3948 sq.ft. but despite this admission of Pw1 the fact remains that the Tenancy Agreement entered into by the parties in respect of an area of 4500 sq.ft. for rent of Rs.40,500/- per month as admitted by Dw1, Dw2, Dw3 in their evidence which shows that rent payment so made till January 2003 then in the month of July 2003 by Defendant the fact on their admission shows that they have acted upon the Agreement as executed by both parties on 7th June 2002 to be in effect from 8th June 2002. Besides this court agrees with the Plaintiff that the Defendant has made baseless claim without any counter claim as regarding his alleged claim of possessing only an area of 3948 sq.ft. ....." 14. In issue No. V, the learned Trial Court held that the parties were bound by the tenancy agreement and the defendant had violated the terms whereof. The learned Trial Court also held that as per the agreement, tenancy commenced from 08.06.2002 and rejected the case of the defendant that the tenancy commenced only from 17.10.2003. 15. ....." 14. In issue No. V, the learned Trial Court held that the parties were bound by the tenancy agreement and the defendant had violated the terms whereof. The learned Trial Court also held that as per the agreement, tenancy commenced from 08.06.2002 and rejected the case of the defendant that the tenancy commenced only from 17.10.2003. 15. In Issues No. VI and VII, the learned Trial Court rejected the case of the defendant about the alleged extra payment and expenditure but in the last, made an observation that the defendant was at liberty to file a separate suit on his plea in those issues. In Issue No. VIII, the learned Trial Court held that the defendant was a defaulter while again making the observation that the defendant had alleged handing over of possession only in the month of October, 2003 without any counter claim. Thereafter, the learned Trial Court decided Issues No. I, II and III against the defendant; and ultimately, in Issue No. IX, the learned Trial Court found the defendant liable for eviction and then, proceeded to grant the final relief in the following terms:- "Issue No.X: To what relief/relief’s the parties are entitled to? From discussing all the issues as above and in the premises therefore the Plaintiff is found entitled to a Decree for (i) Eviction of the Defendant from the suit premises; (ii) For a sum of Rs.3,64,500/- being the arrears of rent for 9 months; (iii) For damages @ Rs.800/- per diem till evicted from the suit premises. (iv) Cost of the suit." 16. Aggrieved by the judgment and decree aforesaid, the defendant tenant has preferred this First Appeal on various grounds. However, it may be noticed at this juncture that when this appeal was posted for final hearing, the defendant-appellant filed an affidavit dated 08.04.2016 with his offer for settlement. Although no such settlement has come through and such an offer is not of any bearing on the merit consideration of this appeal but then, relevant it is to notice that along with the said affidavit dated 08.04.2016, the defendant-tenant has annexed a copy of an order dated 04.06.2004 as passed in Misc. Case No.25 (H) of 2004, whereby the Court of Assistant District Judge, Shillong accepted his prayer for depositing the due rent in the Court @ Rs.39,480/- per month. Case No.25 (H) of 2004, whereby the Court of Assistant District Judge, Shillong accepted his prayer for depositing the due rent in the Court @ Rs.39,480/- per month. Although the said application for deposit of rent was resisted by the plaintiff-landlord but the Court permitted such a deposit while making it clear that if the petitioner (tenant) would pay lesser amount towards monthly rent than stipulated, he would be liable to pay more in case the suit was decreed. Though it appears that the said order dated 04.06.2004 was not produced on the file of T.S. No.9 (H) of 2003 but has been taken note of for an effectual determination of all the questions raised in this matter. Rival contentions 17. In support of this appeal against the judgment and decree so passed by the learned Trial Court, learned counsel for the defendant-appellant has put forward a variety of arguments concerning the matters of procedure as also the merits of the case. The learned counsel submitted that on its frame, the suit as filed by the plaintiff-respondent was not under the Meghalaya Urban Areas Rent Control Act, 1972 ('the Act of 1972') but was only for recovery of possession, particularly when no ground was taken that the defendant-appellant was liable for eviction. Thus, according to the learned counsel, decree for eviction could not have been passed in this case under the Act of 1972. Learned counsel further submitted that the person who signed the plaint namely Father John Madur, who was in know of the facts of the case, was not examined by the plaintiff; and the principal witnesses examined on behalf of the plaintiff namely, PW-1 Father Hilarious Lamare and PW-2 Father Victor Lyngdoh were not conversant with all the facts of the case. Hence, according to the learned counsel, the plaintiff's case cannot be taken as proved. Learned counsel further submitted that only three documents were filed by the plaintiff with the plaint namely, the alleged agreement of tenancy, pleader's notice and the acknowledgement but then, 11 (eleven) more documents were introduced at the later stage, which could not have been taken into consideration. In this regard, the learned counsel has referred to the observations made by the Hon'ble Supreme Court in the case of M/s. R.N Jadi & Brothers and Others v. Subhashchandra: (2007) 6 SCC 420 . In this regard, the learned counsel has referred to the observations made by the Hon'ble Supreme Court in the case of M/s. R.N Jadi & Brothers and Others v. Subhashchandra: (2007) 6 SCC 420 . The learned counsel also contended that the document Exibit-2A, said to be of handing over the keys, was never put to the defendant in the cross examination and no finding could have been arrived at on its basis. Learned counsel has also referred to the decision of the Hon'ble Supreme Court in the case of Life Insurance Corporation of India and another v. Ram Pal Singh Bisen: (2010) 4 SCC 491 to submit that mere filing or exhibiting of a document does not amount to the proof of its contents; and the contents of the relevant documents having not been proved by the plaintiff, no decree could have been passed on their basis. 18. As regards the core issues involved in the matter, learned counsel for the defendant-appellant contended that the alleged tenancy agreement, even if executed on 07.06.2002, was never acted upon by the parties and was rendered meaningless. According to the learned counsel, the date as stated in the alleged agreement cannot be taken to be the date of commencement of tenancy because possession of the premises in question was handed over only on 17.10.2003 and tenancy could not have commenced before this date. Learned counsel has referred to the statement of PW2 to submit that the said witness rather admitted that the tenancy commenced from 17.10.2003, the date of handing over of possession. The learned counsel further contended that the plaintiff's witness clearly admitted that the actual area with the appellant at the ground floor was 3948 sq.ft. and hence, the case of the defendant stood established that the area was not 4500 sq.ft. as alleged by the plaintiff. According to the learned counsel, the defendant-appellant has rightly paid the rent @ Rs.10/- per sq.ft. amounting to Rs.39,480/- per month. 19. and hence, the case of the defendant stood established that the area was not 4500 sq.ft. as alleged by the plaintiff. According to the learned counsel, the defendant-appellant has rightly paid the rent @ Rs.10/- per sq.ft. amounting to Rs.39,480/- per month. 19. Learned counsel for defendant-appellant further strenuously argued that from the dealing of the parties, it is clearly established that the rent for the premises in question was @ Rs.39,480/- per month inasmuch as the defendant-appellant actually paid an amount of Rs.19,740/- towards the rent for a period of half a month from 17.10.2003 to 31.10.2003, which was indeed accepted by the plaintiff; and further, the rent @ Rs.39,480/- per month was paid for the month of November, 2003, December, 2003 and January, 2004. Learned counsel has particularly relied upon the proceedings for depositing the rent to submit that the order passed therein having attained finality, neither the plaintiff could have made a contrary claim as regards rate of rent nor the learned Trial Court could have given a finding different. Thus, according to the learned counsel, the learned Trial Court has seriously erred in holding that the rate of rent was Rs.40,500/- per month and in assuming that the appellant was a defaulter in payment of rent. The learned counsel, while relying on the decisions of the Hon'ble Supreme Court in the case of S. Sundaram Pillai and others v. V.R. Pallaleiraman and others: (1985) 1 SCC 591 and Rashik Lal and others v. Gokuldas and others: (1989) 1 SCC 542 has argued that there being no case of wilful default in payment of rent and then, the landlord having accepted the rent intermittently when offered, cannot seek eviction of the appellant as if he was a habitual defaulter. 20. The learned counsel would also argue that the Trial Court has viewed the entire case from an altogether wrong angle while ignoring the substantial defence of the defendant-appellant for the alleged want of a counter claim. According to the learned counsel, no such counter claim was requisite in the present matter and the case of the defendant-appellant on the material propositions could not have been ignored for want of any such counter claim. 21. According to the learned counsel, no such counter claim was requisite in the present matter and the case of the defendant-appellant on the material propositions could not have been ignored for want of any such counter claim. 21. Per contra, learned counsel for the plaintiff-respondent submitted that the plaintiff had examined the relevant witnesses conversant with the facts of the case and also adduced the documentary evidence which was duly taken on record and was duly proved in accordance with law. Learned counsel submitted that there had not been any objection at the relevant time as regards the documents exhibited in evidence and such a ground at the appellate stage is of no avail. As regards the factual disputes, the learned counsel contended that the tenancy agreement having been admittedly executed by the appellant, he was not entitled to make any assertion against its terms and stipulations. With reference to the decision of the Hon'ble Supreme Court in the case of Smti. Shanti Devi v. Amal Kumar Banerjee: (1981) 2 SCC 199 the learned counsel contended that the intrinsic character of the tenancy agreement cannot be altered and the parties cannot bring about any change in the rights and obligations flowing therefrom. Thus, according to the learned counsel, the area of the premises in question, as duly entered in the agreement cannot be denied by the defendant-appellant. Learned counsel further argued that the appellant himself had admitted the rent being due in his letter dated 26.05.2003 (Exhibit-6) and prayed for time until the month of June, 2003 and hence, he was not entitled to assert that the tenancy commenced only from 17.10.2003. Further, with reference to rent receipts Exhibit 3, 3A and 3B, the learned counsel contended that the defendant-appellant commenced the payment of rent from the month of June, 2002 @ Rs.40,500/- per month and any assertion to the contrary was entirely baseless. Learned counsel also pointed out that later on, the defendant-appellant paid the combined rent @ Rs.76,500/- per month for the three premises let out to him, including the one in dispute in the present appeal [@ Rs.40,500/- per month] and the other two portions on the first floor [respectively @ Rs.22,500/- and Rs.13,500/- per month]. Learned counsel also pointed out that later on, the defendant-appellant paid the combined rent @ Rs.76,500/- per month for the three premises let out to him, including the one in dispute in the present appeal [@ Rs.40,500/- per month] and the other two portions on the first floor [respectively @ Rs.22,500/- and Rs.13,500/- per month]. Learned counsel submitted that the part payment by the defendant-appellant at the later stage, by assuming the rent for the premises in question to be only Rs.39,480/- per month cannot be regarded as a valid payment of the agreed rent and mere deposit of any such amount in the bank account of the plaintiff-respondent cannot lead to the alteration of the terms of tenancy. Learned counsel has relied upon the decision in the case of Kishanlal Singol and another v. Hari Kisson Lohia: AIR 1956 Assam 113 to contend that failure to pay the agreed rent under the terms of the subsisting agreement renders the tenant a defaulter and hence, liable for eviction. The learned counsel also contended that the deposit of rent in the Court by itself does not wipe out the default on the part of the tenant and the deposits as referred in the present case, being not of the rent due and payable, are of no effect. Learned counsel also submitted that the expression 'wilful' does not occur in the Act of 1972 as regards the ground of default and such an expression cannot be read in the statute; and has referred to the decision of the Hon'ble Supreme Court in the case of Bharat Aluminium Company v. Kaiser Aluminium Technical Services INC: (2012) 9 SCC 552 . Learned counsel has further argued that the attempt on the part of the appellant to propound a different case in the evidence than the one pleaded in the written statement cannot be countenanced and has referred to the decisions in the case of Janak Dulari Devi and another v. Kapildeo Rai and another: (2011) 6 SCC 555 and Vinod Kumar Arora v. Surjit Kaur: AIR 1987 SC 2179 . Points for Determination 22. In view of the submissions made, the following points emerge for determination in this appeal: (1) (a) As to whether the suit as filed by the plaintiff/respondent was not under the Meghalaya Urban Areas Rent Control Act, 1972 but was only a suit for recovery of possession? Points for Determination 22. In view of the submissions made, the following points emerge for determination in this appeal: (1) (a) As to whether the suit as filed by the plaintiff/respondent was not under the Meghalaya Urban Areas Rent Control Act, 1972 but was only a suit for recovery of possession? (b) As to whether the plaintiff-respondent did not examine the relevant witness and failed to adduce cogent and admissible evidence; and as to whether the documentary evidence adduced by the plaintiff deserves to be discarded? (c) As to whether the defendant-appellant has propounded a new case different than his pleadings? (2) As to what had been (i) the date of commencement of tenancy in question; (ii) the area of demised premises; and (iii) the rate of rent payable by the defendant-appellant? (3) (a) As to whether the plaintiff-respondent accepted the rent as paid by the defendant-appellant @ Rs.39,480/- per month and is thus estopped from claiming the rent beyond this rate? (b) As to whether the defendant-appellant cannot be held defaulter in payment of rent and liable for eviction when his application for deposit of rent in the Court was duly allowed and he continuously made such deposits in the Court? (c) As to whether the defendant-appellant cannot be held defaulter in payment of rent and liable for eviction when there had not been any allegation and proof of wilful default on his part? 23. Having given thoughtful consideration to the rival submissions and having examined the record, this Court is clearly of the view that this appeal remains wholly without substance and deserves to be dismissed with costs. Frame of Suit and other questions of Procedure 24. As regards the first point for determination on the questions raised by the learned counsel for the parties relating to the rules of procedure and frame of the suit, this Court is clearly of the view that the submissions are either totally baseless or are merely the matters of form rather than of substance. 25. A bare look at the frame of the suit and the scheme of the Act of 1972 is sufficient to find that the first contention urged on behalf of the appellant, that the suit as filed by the plaintiff-respondent was not under the Act of 1972 but was only for recovery of possession, has no merit. 25. A bare look at the frame of the suit and the scheme of the Act of 1972 is sufficient to find that the first contention urged on behalf of the appellant, that the suit as filed by the plaintiff-respondent was not under the Act of 1972 but was only for recovery of possession, has no merit. The Act of 1972 provides for fixing of fair rent of houses situated within the limits of urban areas in Meghalaya and for the matters connected therewith. Per Section 5 (1) thereof, no order or decree for recovery of possession of any house would be made or executed by any Court so long the tenant pays the rent allowable under the Act and performs the conditions of tenancy. However, it is provided that nothing in Sub-Section (1) of Section 5 would apply to a suit or proceedings for eviction of the tenant on various grounds specified therein, which include the ground of default in payment of rent. Sub-Section (4) of Section 5, of course, permits the tenant to deposit the rent in the Court upon the landlord's refusal to accept the lawful rent offered. The relevant parts of Section 5 of the Act of 1972 could be taken note of as under:- "5. (1) No order or decree for the recovery of possession of any house shall be made or executed by any Court so long as the tenant pays rent to the full extent allowable under this Act and performs the conditions of the tenancy : Provided that nothing in this sub-section shall apply in a suit or proceedings for eviction of the tenant from the house:- (a) .... (b) .... (c) .... (d) .... (e) Where the tenant has not paid the rent lawfully due from him in respect of the house within a fortnight of its falling due, or (f) .... (2) .... (3) .... (b) .... (c) .... (d) .... (e) Where the tenant has not paid the rent lawfully due from him in respect of the house within a fortnight of its falling due, or (f) .... (2) .... (3) .... (4) Where the landlord refuses to accept the lawful rent offered by his tenant, the tenant may, within 30 days of its becoming due, deposit in Court the amounts of such rent together with process fees for service of notice upon the landlord, and on receiving such deposit, the Court shall cause a notice of the receipt of such deposit to be served on the landlord, and the amount of the deposit may thereafter be withdrawn by the landlord on application made by him to the Court in that behalf. A tenant who has made such deposit shall not be treated as a defaulter under clause (e) of the proviso to sub-section (1) of this section." 26. In the suit filed by the plaintiff-respondent, the specific allegation had been that the defendant had defaulted in payment of monthly rent; and, while stating that the tenancy was terminated and the defendant was asked to quit, the plaintiff prayed for decree of eviction of the defendant from the suit premises and for the arrears of rent etc. The suit as filed in the present case was clearly the one referable to Clause (e) of proviso to Section 5 (1) of the Act of 1972 and has rightly been tried as such. It has not been the suit for recovery of possession based on title or on the allegations of unlawful dispossession. 27. The other questions raised on behalf of the appellant on procedural aspects are also without any substance. Even if the plaint was verified by Father John Madur, the suit was filed by the Archdiocese of Shillong, as represented by Father Hilarious Lamare and Father Victor Lyngdoh also, apart from the said Father John Madur. Both the aforesaid persons, Father Hilarious Lamare and Father Victor Lyngdoh were examined as PW1 and PW2 respectively and they deposed on all the relevant facts. In fact, the signatures of these two persons (examined as PW1 and PW2) do appear on the plaint as also on the relevant documents, including the tenancy agreement, the rent receipts, and other communications. Both the aforesaid persons, Father Hilarious Lamare and Father Victor Lyngdoh were examined as PW1 and PW2 respectively and they deposed on all the relevant facts. In fact, the signatures of these two persons (examined as PW1 and PW2) do appear on the plaint as also on the relevant documents, including the tenancy agreement, the rent receipts, and other communications. It cannot be said that the persons standing in the capacity of authorised representatives of the plaintiff have not been examined; and for mere want of examination of the person who verified the plaint, no adverse inference could be drawn against the plaintiff in this case. 28. As regards the question of late production of the documents, it does not appear that any objection against production of any document and exhibiting of the same in evidence was ever taken by the defendant at the relevant stage. In fact, such a ground has not been set forth even in the memo of appeal and there appears no reason that the relevant documents, duly exhibited in evidence, be not considered for just and effectual determination of the real matters in controversy. The decision in the case of M/s R.N. Jadi & Brothers (supra) essentially relating to the interpretation and operation of the rules of procedure to advance the cause of justice, does not in any manner lends support to the contentions belatedly sought to be urged in this appeal on the rules of procedure. 29. There cannot be any doubt on the principles reiterated by the Hon'ble Supreme Court in Ram Pal Singh Bisen's case (supra) that mere filing or exhibiting of a document in Court does not amount to the proof of its contents. But in the present case, all the relevant documents have been proved by the relevant persons and by the relevant witnesses on behalf of the plaintiff. In fact, such relevant documents like the tenancy agreement and rent receipts remain indisputable and need to be taken into consideration for determination of the questions arising in the case. 30. The submission of the learned counsel for the plaintiff-respondent that the defendant-appellant was seeking to assert any case contrary to his pleadings is also equally baseless. The defendant-appellant has essentially put the date of commencement of tenancy, area of demised premises and the rate of rent to dispute and cannot be said to have propounded any new case in evidence. The submission of the learned counsel for the plaintiff-respondent that the defendant-appellant was seeking to assert any case contrary to his pleadings is also equally baseless. The defendant-appellant has essentially put the date of commencement of tenancy, area of demised premises and the rate of rent to dispute and cannot be said to have propounded any new case in evidence. 31. In an overall comprehension of the record, this Court is satisfied that the learned Trial Court has not committed any material error of procedure which might operate unjust to any party as regards the decision of the core issues on their merits. Suffice it to conclude on point No.1 that nothing substantial turns upon the contentions of the learned counsel for the parties on matters relating the rules of procedure and frame of the suit. The real questions in controversy: date of commencement of tenancy; area of demised premises; and rate of rent payable 32. As noticed, the parties are fundamentally at variance on the three essential elements of tenancy i.e., the date of its commencement, the area of demised premises and the rate of rent; and determination of the questions relating to these three elements is of utmost importance and significance. Having examined the pleadings taken and the evidence led by the parties, this Court is clearly of the view that the dispute as raised by the defendant-appellant on these three elements has no substance whatsoever and the learned Trial Court has rightly returned the findings against him. 33. The fundamental factor operating against the appellant is that the registered tenancy agreement (Exhibit 1) carries all the aforesaid items viz., the date of commencement of tenancy, the area of demised premises, and the rate of rent in clear, specific and unambiguous terms. The relevant portions of this tenancy agreement read as under:- "Agreement of Tenancy This Agreement of Tenancy is made on this the Seventh day of June two thousand two between the Catholic Trust of the Archdiocese of Shillong comprising Rev.Fr.Michael Marbaniang, Rev.Fr.Cresence Khongwir and Rev. Fr. Henry Manar now to be represented by Rev.Fr. Victor Lyngdoh, Rev.Fr. Hilarius Lamare and Rev.Fr. John Madur of Laitumkhrah who are the absolute owner in possession of the land and building called "SALONSAR MANSION" hereinafter called the FIRST PARTY, which term shall mean and include its heirs, successors, legal representatives, executors and assigns of the ONE PART and Mr. Fr. Henry Manar now to be represented by Rev.Fr. Victor Lyngdoh, Rev.Fr. Hilarius Lamare and Rev.Fr. John Madur of Laitumkhrah who are the absolute owner in possession of the land and building called "SALONSAR MANSION" hereinafter called the FIRST PARTY, which term shall mean and include its heirs, successors, legal representatives, executors and assigns of the ONE PART and Mr. Paul Leong resident of Pdeng shnong, Lower Mawprem, Shillong-793002, Meghalaya, who is the tenant hereinafter called the SECOND PARTY, which term shall also mean and include his/her heirs, successors, legal representatives, executors and assigns on the other part. And Whereas The First Party is the absolute owner/in possession of the land and multistoried building called the "SALONSAR MANSION" having shops, rooms godowns, offices etc., and space situated at Jail Road, European Ward of Shillong Municipality, Shillong -793001, Meghalaya and is desirous of letting out the shops, rooms and space etc., which is more specifically described in the Schedule herein below at the monthly rent of Rs.40,500/- (Rupees forty thousand five hundred) only. And Whereas The Second Party is willing and agreeable to become a monthly tenant at will with regard to the premises at Ground floor of "SALONSAR MANSION" which is more specifically described in the schedule herein below on payment of monthly rentals of Rs.40, 500/- (Rupees forty thousand five hundred) only per month on the terms and conditions laid down herein under. Now This Indenture Witnesseth As Follows: 1. That the First Party shall let out to the SECOND PARTY 4500 Sq.Feet at GROUND FLOOR on a monthly rental of Rs.40,500/- (Rupees forty thousand five hundred) only, payable in advance within the first week of every calendar month of possession. 2. That the Second Party shall pay a sum of Rs.100,000/- (Rupees one lakh) only, which shall remain with the FIRST PARTY as a Security Money during the subsistence of this Tenancy and shall not bear any interest. 3. That this Tenancy shall come into force with effect from 08th June 2002 to 07th June 2007 for the period of 5 (five) years initially and renewable for a period as may be mutually agreed upon and on enhancing the existing monthly rent by 5% (Five percent). ..... ..... ..... ..... 15. 3. That this Tenancy shall come into force with effect from 08th June 2002 to 07th June 2007 for the period of 5 (five) years initially and renewable for a period as may be mutually agreed upon and on enhancing the existing monthly rent by 5% (Five percent). ..... ..... ..... ..... 15. That if the Second Party defaults in the payment of the monthly rent consecutively for a period of 2 (two) months, the FIRST PARTY shall be at liberty to terminate the tenancy by giving one month's notice in writing and on the expiry of the said notice period, the SECOND PARTY shall vacate and hand over the possession of the rented premises to the FIRST PARTY. 16. That in the event of violation of any of the terms and conditions of this agreement by the SECOND PARTY, the FIRST PARTY shall forthwith terminate the tenancy by giving one month's notice in writing and shall take over the possession of the rented premises on expiry of the period fixed in the notice. .................... ..... ..... ..... ..... "SCHEDULE Room/Shop/premises/measuring/4500sq.ft. at the Basement/Ground/First/Second/floor of the "SALONSAR MANSION", situated at Jail Road, European Ward of Shillong Municipality, Shillong-793001, which is rented out to Mr. Paul Leong and is bounded as follows:- 1. EAST: 90 Feet bounded by Assam Studio 2. WEST: 56 Feet bounded by Wall windows 3. NORTH:38 Feet bounded by toilets wall and staircase wall 4. SOUTH: 23 Feet bounded by Front wall entrance." (underlining supplied for emphasis) 34. It is not in dispute that the defendant-appellant indeed entered into the aforesaid tenancy agreement, which was duly signed by the parties and was registered on 07.06.2002. The date of commencement of tenancy in question has been stated in this agreement in the clear terms that "this Tenancy shall come into force with effect from 8th June 2002". The location as also the area of demised premises has also been distinctly set forth in the Schedule appended to the agreement; and it remains beyond question that the area stated is "4500 sq.ft." The rate of rent payable by the defendant-appellant for the premises in question has also been distinctly and repeatedly stated as "Rs.40,500/- (Rupees Forty thousand five hundred) per month". 35. 35. As a general rule, as per Sections 91 and 92 of the Evidence Act, 1872, no evidence de hors the terms of a written agreement could be led by any party to get out of the express terms thereof. It has not been the case that the appellant was seeking to suggest any separate oral agreement in relation to any matter on which the document in question is silent. Moreover, nothing has been placed on record to prove any fact so as to invalidate the agreement Exhibit 1. Therefore, in the totality of circumstances of this case, no other evidence contradicting, or at variance with, the terms of this registered agreement (Exhibit 1) could not be taken into consideration and is required to be excluded as such. 36. Moreover, the document in question, being a registered agreement of tenancy, any variation of the terms thereof, particularly the rent reserved, could have only been by way of another registered instrument. There being no other registered instrument executed between the parties, the terms and conditions contained in the agreement Exhibit 1 remain operative and do bind the appellant fair and square. 37. It may be noticed at this juncture that the learned Trial Court rejected the suggestions standing at variance with the terms of the agreement (Exhibit 1) while also observing that the defendant-appellant had not taken any counter claim in that regard. These observations of the learned Trial Court cannot be faulted at. The defendant-appellant was always aware of the terms and conditions of the registered tenancy agreement; and was also aware of the fact that the terms of the said agreement stood at variance with the terms sought to be suggested by him. The appellant never sued for rescission of this agreement or for cancellation of this instrument on any valid legal ground. The appellant even did not pray for any declaration against the document in question. Therefore, the document remains binding on the appellant; and as observed by the Hon'ble Apex Court in Smti. Shanti Devi's case (supra), its intrinsic character could not have been altered nor the appellant could have brought about any change of the rights and obligations flowing therefrom. 38. It has been suggested on behalf of the defendant-appellant that the aforesaid agreement was never acted upon and be taken as ineffective and meaningless. This Court is unable to accept such submissions. 38. It has been suggested on behalf of the defendant-appellant that the aforesaid agreement was never acted upon and be taken as ineffective and meaningless. This Court is unable to accept such submissions. The aforesaid agreement had been a registered instrument and the premises in question were let out to the appellant only on the basis of this agreement. As shall be noticed hereafter, the dealings of the parties rather establish the fact beyond doubt that the agreement was duly acted upon by the parties including the appellant himself until he chose to unilaterally alter his obligations under the agreement for no valid reason. 39. Moreover, the oral evidence as led in the present case, only fortifies the case of the plaintiff and nothing has been proved on record as regards different date of commencement of tenancy, the measurement of premises and rate of rent, as sought to be suggested on behalf of the defendant-appellant. A few lines/sentences occurring in the statements of the plaintiff's witnesses have been picked up by the learned counsel for the appellant to contend that there had been an admission of the witnesses that only an area of 3948 sq.ft. was available with the appellant. The contentions remain rather incorrect on facts. The evidence, read as a whole, make it absolutely that the plaintiff's witnesses clearly specified as to how the area was calculated and how the same was mentioned in the agreement. The relevant part of testimony of the witnesses could be taken note of as follows: PW1 Father Hilarius Lamare stated in his affidavit of examination-in-chief that, "The total area of Ground floor is 3948 sq.ft. to which 15% area is added for use of passage, latrine, parking area and surrounding lighting which fact was known to the Defendant and agreed by him before executing the Tenancy Agreement. The total area actually comes to 4540 sq.ft. but at the request of the Defendant, it was made round figure 4500 sq.ft." 40. This witness was extensively crossed examined and he stated as regards area, date of commencement of tenancy and the rate of rent as under: "It is true that the actual area of the R.C.C. building in the ground floor under the occupation of the Defendant is 3948 sq.ft. 15% of the passage lighting, toilet if there, are included the area will be more than 3948 sq.Ft. 15% of the passage lighting, toilet if there, are included the area will be more than 3948 sq.Ft. and the Defendant is aware of this but when we have given the area for occupation of tenant we have make round number 4500 sq.Ft. to which it should be 4450 sq.Ft. The area mentioned in the agreement is not correct. It is not a fact that the possession on the ground floor was handed to the Defendant on 17.10.2003. There is nothing on record to show that the possession was delivered to the Defendant after execution of Tenancy Agreement. It is a fact that in the Tenancy Agreement it is not mentioned anywhere the area 3948 sq.Ft. and it is not reflecting on the Tenancy Agreement, we have mentioned the total area as 4500 sq.ft. It is a fact that Paul Leong requested to accept the rent only in respect of the area measuring 3948 sq.ft. the Tenancy was created for 5 years. It is not a fact the Tenancy w.e.f. 17.10.2003 the possession of the ground floor was handed over to the Defendant. It is a fact we accepted rent of Rs. 19,740/- being the half month rent w.e.f. 17.10.2003 to 31.10.2003 on good faith that he will pay the full rent on next time." 41. PW2 Father Victor Lyngdoh stated in his affidavit of examination-in-chief that, "That the said Tenancy was w.e.f. June, 2002. The monthly rent was Rs. 40,500/-. The tenancy was initially for a period of 5 years. The Defendant paid a sum of Rs.1,00,000/- as Security Deposit. Besides, the said portion, the Defendant has taken portion in Ground floor and First floor for which he paid Security Deposit of Rs.1,50,000/- and Rs.50,000/- respectively. In total the Defendant paid a sum of Rs.2,00,000/- as Security Deposit for all the three portions for which a receipt was given to him." 42. This witness PW2 was also extensively examined on all the aforesaid aspects of dispute and he stated as follows: "In the premises the defendant has got a show room of Kim Hyundai and sale which is situated at Ground floor of Salonsar Mansion. The area in ground floor is 4500 sq.ft. The area is 3948 sq.ft. excluding parking passage and latrine and light house. It is as per the agreement he agreed that will pay the rent at the rate of Rs. 9 per sq.ft. The area in ground floor is 4500 sq.ft. The area is 3948 sq.ft. excluding parking passage and latrine and light house. It is as per the agreement he agreed that will pay the rent at the rate of Rs. 9 per sq.ft. for the area of 4500 sq.ft. The defendant did not request me to pay the rent only for the area 3948 sq.ft. We have supplied the copy of the agreement I have not agreed to accept the rate in respect of the area 3948 sqft. It is not a fact that I have handed over the ground floor of the building on 17.10.2003. After receiving the possession the defendant never say to correct the area and mentioned in the agreement. It is not a fact that the tenancy commenced from 17th October, 2003 when the possession was given to the defendant. It is a fact that the defendant deposited Rs. 19,740/- in our bank account without our knowledge, when we came to know we came to informed the Bank not to accept the rent. I have not written to the bank not to allow the defendant to deposit rent into our bank account. The defendant deposited the rent Rs. 39,480/- for the month of October 2003; then he deposited rent for the month of December in January 2004. Since we issued legal notice in 16th October 2003, we did not go to the bank to enquire about any deposit by the defendant. I am operating the bank account which is in the joint name. The moment I came to know in the month of January 04 then I immediately objected and sent a letter to the bank instructing not to accept the rent. I objected the deposit of rent in January 04. Vide Ext.9 I requested the Bank not to accept the payment from Kim Hyundai. It is a fact that Ext. 9 I have not requested the bank to refund the amount already deposited in the month of October till January 04 to the defendant. In the month of January 04 I realised that the defendant deposited the rent in the wrong amount and I instructed the bank not to accept the rent. It is a fact that the Bank refunded the rent for the month of January 04 to Kim Hyundai (defendant). In the month of January 04 I realised that the defendant deposited the rent in the wrong amount and I instructed the bank not to accept the rent. It is a fact that the Bank refunded the rent for the month of January 04 to Kim Hyundai (defendant). Then the bank refunded the money then Kim Hyundai also accepted the money paying order. Yes he has deposited the rent for the month of January 04 in Court. I never requested the bank to refund the rent amount deposited in the month of October, Nov & Dec 03 to the defendant and is still lying in my account. I have not accept the rent at it was deposited in the wrong amount. On the ground of wrong amount I did not request the bank not to accept the amount and refund to the defendant. The defendant has paid Rs. One lakh as security deposit to the ground floor. It is not a fact that I received Rs. 7 lakhs from the defendant apart from security deposit. There is no such agreement that the amount spent by the defendant in the internal decorations and for the show room it would be adjusted with the rent. It is not my look out to see how much the defendant had spent for the internal decoration. I never know and never asked also that the defendant has spent 25 lakhs for the show room. The defendant has never requested me to execute a fresh agreement commencing from 17th October 2003 from the date of handing over the possession. It is a fact that the rent receipt Ext. 3,3(A), 3(B), does not bear the signature of the defendant. It is not a fact that the defendant has never tendered advance rent in cash and it is not a fact that Ext.3, Ext.3(A), 3(B) are the manufacture rent receipts. It is not a fact that I have accepted the rent whenever the defendant tendered rent. It is a fact that I have not annexe the rent receipt along with the plaint." 43. The defendant appellant himself asserted on his case in the affidavit of examination-in-chief as follows: "6. That I received the possession of the ground floor from the Plaintiff on 17/10/2003 and the actual area of the ground floor is 3948 sq.ft. instead of 4500 sq.ft. as mentioned in the Tenancy Agreement. The defendant appellant himself asserted on his case in the affidavit of examination-in-chief as follows: "6. That I received the possession of the ground floor from the Plaintiff on 17/10/2003 and the actual area of the ground floor is 3948 sq.ft. instead of 4500 sq.ft. as mentioned in the Tenancy Agreement. The Tenancy also commenced w.e.f. 17/10/2003 when the possession of ground floor was handed over to me. It is evident that the Plaintiff accepted rent of Rs. 19,740/- (Rupees Nineteen Thousand Seven Hundred Forty) only being month rent for the period w.e.f. 17/10/2003 to 31/10/2003. 7. That the Plaintiff started accepting the rent in respect of the ground floor at the rate of Rs. 10/- (Rupees Ten) only per sq.ft. for the area measuring 3948 sq.ft. of Rs. 39,480/- (Rupees Thirty Nine Thousand Four Hundred and Eighty) only per month. 8. That till the filing of the instant suit by the Plaintiff, the rent was paid by me and accepted by the Plaintiff as under:- Rent Paid for the month of Amount Paid on October 2003 - month (17/10/2003 to 31/10/2003) 19,740/- 7/11/2003 November 2003 39,480/- 3/12/2003 December 2003 39,480/- 3/1/2004 January 2004 39,480/- 3/2/2004 The rent for the aforesaid months were paid as per the instruction of the Plaintiff by depositing the same into the S.B. Account No. 5926 of the Plaintiff in the Federal Bank Ltd, Shillong Branch. At present I am depositing rent in the Court on the fund by the Plaintiff. This Hon'ble Court has allowed me to deposit the rent into court and accordingly I have been depositing the rent in the court regularly and sincerely without default. The latest rent for the month of _______200__ (sic) has been paid. Ex I, II, III and IV are the Rent Receipts and Ext V is the latest challan. 9.That the alleged Tenancy Agreement in respect of the ground floor is meaningless and cannot be a basis for filing the instant suit for ejectment. The Plaintiff never raised objection when the rent was not paid in advance within the first week of every English Calendar month, but he was found in the habit of accepting the monthly rent whenever the same was tendered by me." 44. The Plaintiff never raised objection when the rent was not paid in advance within the first week of every English Calendar month, but he was found in the habit of accepting the monthly rent whenever the same was tendered by me." 44. On the other hand, the relevant part of the statement made by the defendant-appellant in his cross examination had been as under: "I entered the Tenancy agreement with the owner of the property at Jail Road, known as Salonsar Mansion. This Tenancy Agreement was registered with the Sub Registrar, Shillong and this agreement was for the period of 5 years with effect from 8.6.2002. This tenancy agreement is a written agreement and terms and conditions of the tenancy is mentioned in the agreement. This tenancy/Agreement is exhibited as Ext. 1. This tenancy agreement Ext. 1 is for the ground floor of the Solansar Mansion where I am running my business. Monthly rent is reserved at the rate of Rs. 40,500/- per month. It is also stipulated that monthly rent of the premises shall be paid in advance. In clause 15 of the said agreement Ext. 1 it is stipulated that if second party default in the payment of the monthly rent consecutively for a period of 2 months the first party shall be at liberty to terminate the tenancy by giving one month's notice in writing and on the expiry of the said period notice period the second can vacate and handover possession of the rented premises to the first party. I have also paid a sum of Rs. 1 lakh as security deposit to the first party. I have paid a sum of Rs. 40,500/- vide cheque No. 057428 dated 9.9.2002 on Central Bank of India, Shillong. This amount I paid as first party have asked for it. On the next month i.e. October I paid a sum Rs. 40,500/- vide cheque No. 057462 dated 11.10.2002 payable on Central Bank of India. Again in the month of November I paid a sum of Rs. 76,500/- vide cheque No. 057496 dated 12.11.2002 payable on Central Bank of India. Again in the month of December I paid the sum of Rs. 76,500/- vide cheque No. 003319 dated 10.12.2002 payable on Central Bank of India. Again in January 2003 I paid a sum of Rs. 76,500/- vide cheque No. 003337 dated 9.1.2003 on Central Bank of India. 76,500/- vide cheque No. 057496 dated 12.11.2002 payable on Central Bank of India. Again in the month of December I paid the sum of Rs. 76,500/- vide cheque No. 003319 dated 10.12.2002 payable on Central Bank of India. Again in January 2003 I paid a sum of Rs. 76,500/- vide cheque No. 003337 dated 9.1.2003 on Central Bank of India. Again in the month of July 2003 I paid a sum of Rs. 76,500/- vide cheque No. 0148814 dated 26.7.2003." 45. Thus, the evidence of the parties, taken as a whole, leaves nothing to doubt that according to the plaintiff-respondent, even when the ground floor area was 3948 sq.ft., 15% of the area of passage, toilet etc was included therein and it has been a specific assertion of the plaintiff's witnesses that the total area was 4450 sq.ft. that was rounded off to 4500 sq.ft. in the agreement. 46. As regards the date of commencement of tenancy, though the defendant-appellant attempted to suggest that he was handed over the premises only on 17.10.2003 and, therefore, this should be taken as the date of commencement of tenancy but the fact of the matter remains that the date of commencement of tenancy was mentioned in the agreement as 08.06.2002. Not only this, the defendant indeed commenced payment of rent from the month of June 2002, as is distinctly proved by the receipts, Exhibits 3A and 3B whereby he paid the rent for the months of June, July and August 2002. The defendant himself further admitted that he paid the rent at the rate of Rs.40,500/- by way of cheques in the months of September and October 2002. The defendant further admitted having paid an amount of Rs.76,500/- by way of cheque dated 12.11.2002, another amount of Rs.76,500/- by way of cheque dated 10.12.2002 and yet another amount of Rs.76,500/- by way of the cheque dated 09.01.2003; and thereafter he paid another Rs.76,500/- in the month of July 2003 by way of cheque dated 26.07.2003. It is noticed that this amount of Rs.76,500/- represents the combined rent for the three different premises under three different tenancies i.e., Rs.40,500/- for the premises in question in this appeal and Rs.22,500/- and Rs.13,500/- for the other two premises on the first floor. It is noticed that this amount of Rs.76,500/- represents the combined rent for the three different premises under three different tenancies i.e., Rs.40,500/- for the premises in question in this appeal and Rs.22,500/- and Rs.13,500/- for the other two premises on the first floor. It is also noticed in his letter dated 26.05.2003 (Exhibit 6), the defendant-appellant specifically stated that he would be "able to pay and clear out the rent" for the showroom in the month of June, 2003. 47. In the face of aforesaid dealings of the parties and payment of rent by himself, the defendant-appellant cannot be acceded any liberty to suggest any variance of the terms and stipulations of the registered tenancy agreement. Hence, this Court has no hesitation in rejecting the case of the defendant-appellant and in endorsing the findings of the learned Trial Court that the date of commencement of tenancy in question had been 08.06.2002; that the area of demised premises was 4500 sq.ft; and that the rent payable by the defendant-appellant for the tenancy in question was Rs.40,500/- per month. Payment of rent @Rs.39,480/- per month and effect thereof 48. It is suggested on behalf of the defendant-appellant that the plaintiff-respondent accepted the rent as paid by him at the rate of Rs.39,480/- per month and thus, the plaintiff was estopped from claiming the rent beyond this rate. This suggestion remains entirely baseless and could only be rejected. As noticed and found hereinbefore, the rent payable for the premises in question had been Rs.40,500/- per month; and in fact, the defendant-appellant did make payment of the rent only at this rate from the month of June 2002 and until the month of January 2003. He further made the payment of rent at this very rate in the month of July 2003. It appears that thereafter, the defendant chose to make payment of an amount of Rs.19,740/- on 07.11.2003, purportedly towards the rent for half a month i.e., for the period 17.10.2003 to 31.10.2003. Thereafter, the defendant deposited further an amount of Rs.39,480/- on 03.12.2003 and another amount of Rs.39,480 on 03.01.2004 and yet another amount of Rs.39,480/- on 03.02.2004. The defendant would assert that having accepted such payments, the plaintiff was estopped from claiming the rent beyond this rate. The submissions have several fundamental shortcomings. Thereafter, the defendant deposited further an amount of Rs.39,480/- on 03.12.2003 and another amount of Rs.39,480 on 03.01.2004 and yet another amount of Rs.39,480/- on 03.02.2004. The defendant would assert that having accepted such payments, the plaintiff was estopped from claiming the rent beyond this rate. The submissions have several fundamental shortcomings. As noticed, the rate of rent reserved in the registered agreement and adhered to by the parties for a long length of time could not have been altered by the unilateral act of the restricted or part payment by the appellant himself. Noticeable it is that the notice terminating tenancy was served on behalf of the plaintiff on 16.10.2003 (Exhibit 7); and as per the acknowledgement (Exhibit 8), the defendant-appellant received the same on 18.10.2003. The defendant-appellant sent his reply to the notice on 27.11.2003 (Exhibit 8A). Obvious it is that the payment of the amount of Rs.19,740/- was made by the appellant only on 07.11.2003 i.e., after receipt of the legal notice terminating tenancy and asking him to quit. In the face of such dealings of the parties, any payment by the defendant-appellant after receiving the notice cannot enure to his benefit nor such a payment could vary the terms of tenancy, including the rent. 49. In fact, such a rate of rent at Rs.39,480/- was chosen by the defendant-appellant himself of his own accord by assuming that the rent was required to be paid at Rs.10/- per sq.ft. In an overall view of the evidence on record, this Court has no hesitation in concluding that no estoppel operates against the respondent because of unilateral payment by the appellant of the rent at the rate of Rs.39,480/- per month after receipt of the notice to quit. The effect, if any, of deposit in the Court 50. Once it is found that the rate of rent for the tenancy in question had been Rs.40,500/- per month and not Rs.39,480/- per month as suggested by the appellant, the deposit of rent in the Court loses its relevance and does not enure to the benefit of the appellant because the appellant has admittedly made the deposit only at the rate of Rs.39,480/- per month. Though for avoiding the rigour of clause (e) of proviso to Section 5 (1) of the Act of 1972, a tenant may deposit the rent in the Court where the landlord refuses to accept the same but it remains elementary that such an offer by the tenant and such a deposit by him has to be of "lawful rent" and not of any amount as unilaterally chosen by him. The lawful rent in the present matter has been the one reserved by the agreement in question i.e., at the rate of Rs.40,500/- per month and any amount paid or deposited towards the rent lesser than this rate cannot be treated as offer or payment of the lawful rent. Thus, the deposits made by the defendant-appellant are of little effect and in any case, do not wipe out the default committed by him. On the contrary, such deposits when falling short of the rent due and payable, rather fortify the case of the plaintiff-respondent that the defendant-appellant has not paid the rent lawfully due from him. 51. The suggestion that the Court had accepted such deposit of rent does not absolve the defendant-appellant of his liability as a defaulter. As noticed hereinbefore, the order as passed by the Court on 04.06.2004 in Misc. Case No.25 (H) 2004 was not produced on the file of T.S. No.9 (H) 2003. Yet, the same has been taken into consideration in the appeal to examine the contentions urged on behalf of the defendant-appellant. It is noticed that therein, the Court did not determine the rate of rent because the suit filed by the plaintiff-respondent was pending and it was also made clear that if the tenant would be making payment of lesser amount towards monthly rent than the one stipulated, he would be liable to pay more in case the suit was decreed. Even otherwise, there was no occasion for the Court while dealing with a prayer for deposit to determine the other questions, which were to be determined in the present suit only. Thus, it is not correct to suggest that the defendant-appellant cannot be held defaulter in payment of rent only because his application for deposit of rent was granted by the Court. If there is any effect of want of allegation and proof of wilful default 52. Thus, it is not correct to suggest that the defendant-appellant cannot be held defaulter in payment of rent only because his application for deposit of rent was granted by the Court. If there is any effect of want of allegation and proof of wilful default 52. The contention on behalf of the defendant-appellant that he cannot be held liable for eviction for want of any allegation of 'wilful' default equally remains without substance. It remains indisputable that the expression 'wilful' default does not occur in the Act of 1972. In a comprehension of the relevant clauses, it is evident that no order or decree for recovery of possession is to be made or executed against a tenant so long as he pays the rent to the full extent allowable and performs the conditions of tenancy but such a protection is not allowed to a tenant in the suit or proceedings for eviction if he has not paid the rent lawfully due from him within a fortnight of its falling due. The learned counsel for the respondent has rightly contended with reference to the decision in Bharat Aluminium Company (supra) that the plain provisions in a statute are required to be construed by their plain language; and a Court cannot reconstruct a provision by adding certain words or expressions therein. In view of the different phraseology in the Act of 1972, the interpretation by the Hon'ble Supreme Court of the provisions contained in the different rent enactments applicable in different States and Union Territory are of no assistance to the contentions urged on behalf of the appellant. In the said cases, the statutes taken up for interpretation carried the term 'wilful' defaulter one way or the other, whether in the negative form or in the affirmative or in different phraseology. For the purpose of the Act of 1972, the observations made by the then Assam High Court in Kishan Lal's case (supra), on interpretation of Assam Urban Areas Rent Control Act, 1949 would directly apply; and the defendant-appellant having not paid the agreed rent, could only be held to be a defaulter. 53. It is also noteworthy that as per the agreed terms of tenancy, in case of the tenant's default in payment of monthly rent consecutively for a period of two months, the landlord was at liberty to terminate the tenancy by giving one month's notice. 53. It is also noteworthy that as per the agreed terms of tenancy, in case of the tenant's default in payment of monthly rent consecutively for a period of two months, the landlord was at liberty to terminate the tenancy by giving one month's notice. In the present case, it remains rather a matter indisputable that after the month of January 2003, the defendant-appellant failed to make payment of the rent lawfully due from him for the months of February, March, April, May and June 2003. Thereafter, he made the payment of the rent in the month of July 2003 but again defaulted for the months of August, September and October 2003. On 07.11.2003 (after receiving the notice terminating tenancy) the defendant-appellant himself unilaterally decided to make payment of rent at the rate of Rs.39,480/- per month which was, as already found, not the payment of the rent lawfully due and payable. Thus, at the time of filing of the suit in the month of December 2003, the defendant-appellant had been in substantial arrears of rent and it was a case of clear default without any reason or justification. 54. Though, as observed herein above, the expression, 'wilful' does not occur in the Act of 1972 but, on the facts and in the circumstances of the present case, it is clear that the defendant-appellant had, without any sufficient cause, defaulted in payment of the due rent and thereafter chose to reduce the amount of rent payable without any reason, logic or justification. Thus, his own conduct operates heavily against the defendant-appellant and the present one has been nothing less than a case of inexcusable and wilful default in payment of rent. In view of his own conduct of inexcusable default, the suggestion by the appellant about intermittent acceptance of rent by the plaintiff-respondent carries no relevance or effect; and the decision in the case of Rashik Lal (supra) is of no help to the appellant. In this regard too, the material on record clearly indicates that the appellant attempted to make such intermittent payment without any reason or justification. In any case, looking to the terms of tenancy and provisions contained in the Act of 1972, the default on the part of the appellant in failing to make payment of lawful rent stand established beyond the pale of doubt. An observation 55. In any case, looking to the terms of tenancy and provisions contained in the Act of 1972, the default on the part of the appellant in failing to make payment of lawful rent stand established beyond the pale of doubt. An observation 55. Before concluding this matter, this Court is impelled to make an observation, though in the passing. It is noticed that the learned Trial Court, while granting the relief and passing the decree in this matter for eviction and arrears of rent, chose to award damages to the plaintiff-respondent for use and occupation of the premises by the defendant-appellant until eviction only @ Rs.800/- per diem. This aspect was put to the learned counsel for the respondent, who candidly submitted that the plaintiff-respondent has not questioned this part of the decree nor filed any cross objection in this regard. In the totality of circumstances, this aspect needs no further comment except the observation that the respondent-landlord shall be entitled to receive the amount as deposited by the appellant in the Court after proper adjustments in accordance with law. Conclusion 56. For what has been discussed herein above, the findings as recorded by the learned Trial Court call for no interference and this appeal is required to be dismissed. 57. Accordingly and in view of the above, this appeal fails and is, therefore, dismissed with costs. 58. However, it is provided that as against the monetary part of the decree in question, the respondent-landlord shall be entitled to receive the amount as deposited by the appellant in the Court after proper adjustments in accordance with law. 59. Having regard to the circumstances of the case and in the interest of justice, it is also provided that the execution of decree for eviction shall not be carried out for a period of 90 (ninety) days from today subject to the condition that the appellant shall not remain in arrears of rent and shall not otherwise sublet or part with the possession to anyone else and shall not cause any material alteration of the premises in question.